Kay v Marshall
| Jurisdiction | England & Wales |
| Judgment Date | 06 March 1836 |
| Date | 06 March 1836 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 418
HIGH COURT OF CHANCERY
S. C. 2 Webs. Pat. Cas. 36; 1 Keen, 190; 1 Beav. 535; 8 L. J. C. P. (N. S.), 261; 5 Jur. (O. S.), 1028; 7 Scott, 548; 5 Bing. N. C. 492; 8 Cl. & Fin. 245. See Heath v. Unwin, 1847, 15 Sim. 553; Sibson v. Edgworth, 1847, 2 De G. & S. 83; Lord Leigh v. Lord Ashburton, 1848, 11 Beav. 474; Plimpton v. Malcolmsm, 1876, 3 Ch. D. 563; Herrburger Schwander et Cie. v. Squire, 1888, 5 R. P. C. 581; 6 R. P. C. 194; Pirrie v. York Street Flax-Spinning Company, Ltd., 1894, 11 R. P. C. 447; Beavis v. Rylands Glass & Engineering Company, 1900, 17 R. P, C. 97.
[373] kay v. marshall. Jan. 27, 28, Feb. 1, 1836. [S. C. 2 Webs. Pat. Cas. 36; 1 Keen, 190; 1 Beav. 535; 8 L. J. C. P. (N. S.), 261; 5 Jur. (0. S.), 1028 ; 7 Scott, 548 ; 5 Bing. N. C. 492 ; 8 Cl. & Fin. 245. See Heath v. Unvrin, 1847, 15 Sim. 553; Sibson v. Edgworth, 1847, 2 De G. & S. 83; Lord Leigh v. Lord Ashburtm, 1848, 11 Beav. 474; Plimpton v. Malcalmsm, 1876, 3 Oh. D. 563; Hen-burger Schwawler et Oie. v. Squire, 1888, 5 R. P. C. 581; 6 R. P. C. 194; Pirrie v. York Street Flax-Spinning Company, Ltd., 1894, 11 R. P. C. 447; Eeavisv. Rylands Glass & Engineering Company, 1900, 17 R. P, C. 97.] The Court will not, for the purpose of determining the validity of a Plaintiff's title as the patentee of an invention, make an order, upon demurrer, directing the bill to be retained, with liberty to the Plaintiff to bring an action. Where the bill alleges that the Plaintiff is the patentee of an invention, stating its nature generally, but referring for greater certainty to a specification in which it is set forth and described at large, and alleges also that the Plaintiff has been for ten years in the exclusive enjoyment of such patent, and has established his legal title by repeated actions, a general demurrer on the ground of the invalidity of the patent as stated in the bill will be overruled. The bill in substance stated that in the year 1824 the Plaintiff invented new and improved machinery for preparing and spiniung flax, hemp, and other fibrous substances by power, and that he obtained His Majesty's letters patent, dated the 26th of July 1825, granting to him, his executors, administrators, and assigns, the sole and exclusive 1 MY. & OR. 374 KAY V. MARSHALL 419 right and privilege of making, using, exercising, and vending his said invention in England for the period of fourteen years. The bill then set forth the letters patent at large, and stated that it was thereby among other things provided, that if the Plaintiff should not particularly describe and ascertain the nature of his invention, and in what manner the same was to be performed, by an instrument in writing under his hand and seal, and cause the same to be enrolled as therein mentioned, the letters patent should become void, as by the said letters patent, or the exemplification thereof when produced, would appear. The bill further stated that by an instrument in writing or specification under his hand and seal, dated the 26th of July 1825 and duly enrolled, the Plaintiff, in pursuance of the proviso contained in the letters patent, particularly set forth, described -and ascertained the nature of his invention and its several parts, and in what manner the same was to be performed ; and that he thereby declared that what he claimed as his invention in respect of new machinery for preparing flax, hemp, and other fibrous £374] substances, were the macerating vessels, marked (B.) in the drawing annexed to the specification, and the trough of water, marked (C.) in such drawing, and that what he claimed as his invention in respect of improved machinery for spinning flax, hemp, And other fibrous substances was the wooden or other trough, marked (D.) in the drawing, for holding the rovings when taken from the macerating vessels, and the placing of the retaining rollers (e. e.) and the drawing rollers (c. c.) nearer to each other than they bad ever before been placed, say within two and a half inches of each other, for the purpose aforesaid, as by the specification to which the Plaintiff referred would appear. That in the process of spinning flax by power, the skein of flax, commonly called & roving, is drawn out or elongated, immediately before its being spun, by means of òdrawing and retaining rollers, the drawing rollers moving at a greater velocity than the retaining rollers ; and that in the machinery for spinning flax by power commonly in use prior to the Plaintiff's invention, the drawing and retaining rollers were placed at a distance of from twelve to twenty inches, or thereabouts, from each other, such òdistance being regulated by the length of the staple or fibre of the flax ; and that such machinery was not adapted to the spinning of flax in a wet or macerated state, by reason that wet or macerated flax could not, when the rollers were placed at the òdistance of the ordinary length of the staple, be drawn out or elongated to the requisite òdegree of fineness without breaking. That the Plaintiff, after many experiments, discovered that by a new combination of the drawing and retaining rollers, that is to ay, by placing the drawing rollers at a distance of two and a half inches only from the retaining rollers, the skein of flax or roving might be drawn out and spun in a wet or [37B] macerated state; and that when drawn out and spun in such prepared state, a thread of a much finer and stronger texture could be produced than could be produced from the skein or roving drawn and spun with the machinery and according to the method in use prior to the Plaintiff's invention ; and the Plaintiff having made this discovery, and having contrived machinery more convenient for preparing flax by macerating or wetting the same than any theretofore in use, and having also invented new and improved machinery for spinning flax in such prepared state, constructed on the principle of such new combination of the rollers, he applied for and obtained the -aforesaid letters patent, applicable as well to his improved method of preparing flax, -as to hia improved machinery for spinning flax when so prepared. That by reason of improvements made in the preparation of flax subsequently to the date of the Plaintiffs letters patent, the process of macerating flax in the mode described in his specification had become altogether, or in a considerable degree, unnecessary; but his improved machinery for drawing and spinning flax continued to be used to a great extent and with great advantage. That the Plaintiff's invention of machinery for spinning flax by means of placing the drawing rollers within the said short distance from the retaining rollers, was a new invention, and one of great public utility, and that by means thereof flax could be spun into a thread of a much finer and stronger texture than by the old method ; and that, since the promulgation of the Plaintiffs invention, machinery made upon the principle of that invention had been substituted for the machinery formerly in use, and great profit had been derived from the use of such new and improved machinery. [376] That the patent granted to the Plaintiff was a valid patent, and still in full 420 KAY V. MAKSHALL 1 MY. & CR. 377. force; but that, nevertheless, the Defendants had, without his licence or authority, and in violation of his exclusive right to the benefit of his invention, caused great quantities of new and improved machinery for spinning flax to be constructed upon the principle of the Plaintiff's invention, and had used, and continued to use the same in their spinning mills, without making any compensation to the Plaintiff for the use-thereof. That since the Plaintiff obtained his patent, new machinery had been introduced into the Defendants' mills, constructed on the principle of the Plaintiff'^ invention, especially with regard to the position of the retaining and drawing rollers, that is to say, upon the principle of placing the retaining and drawing rollers nearer to each other, and within such short distance as aforesaid; and that the said principle was and is a material part of the invention in respect of which such patent was f ranted. That the Plaintiff had brought many actions at law against parties infringing ia patent, who had all submitted and paid him damages ; and that many others had submitted and paid him damages without having been sued; and that in particular he had brought an action against one William Eenshaw for infringing his patent, and had recovered a verdict for damages, and thereby established the validity of hia patent. The bill charged that 10s. per spindle was less than the amount of profit which the Defendants had derived from the use of the Plaintiff's invention. That the Defendants ought to set forth an account of the number of spindles used, and the quantity of flax spun by them, by means of machinery constructed on the principle of the Plaintiff's invention, and also of the profits derived by them from the use of such machinery. That the [377] profits of the Defendants in their business of flax spinners had been greatly increased by the use of the said invention in their machinery for drawing and spinning flax; and so it would appear, if the Defendants would set forth comparative accounts of the profits made by them for drawing and spinning flax, since their use of the said invention, and the profits made by them in an equal number of years before the introduction of the same into their machinery. The bill prayed that the Defendants might be restrained from all further infringement of the Plaintiff's patent, and that they might account for the profits derived from the use of the Plaintiff's invention in the spinning of flax. The Defendants having put in a general demurrer to the bill for want of equity, the Vice-Chancellor, after hearing the demurrer argued, made an order directing it to-stand over, with liberty for the Plaintiff to bring such...
To continue reading
Request your trial
-
Emmott v Mitchell
...the averments in them raised several distinct issues. NobTdssen v. Hastings (2 Ves. jun. 84); Jones v. Frost (3 Madd. 1); Kay v. Marshall (1 Keen, 190); Hardman v. Ellames (ante, vol. v. p. 640). the vice-chancellor [Sir L. Shadwell]. Upon the question of allowing 14 SIM. 4. EMMOTT V. MITCH......
-
Gibson and Another v Brand
...an action. Upon an appeal to Lord Cottenham C. (1st of February 1836), this order was discharged, and the demurrer was overruled (see 1 Mylne & Craig, 373). The defendants then applied to Lord Langdale M. B. for leave to file a double plea to the plaintiff's bill, which was granted (see 1 K......
-
Bampton v Birchall
...must, however, pay the costs of the application. See Gibson v. Whitehead, 4 Mad. 241; Hardman v. Ellames, 5 Sim. 645; Kayv. Marshall, 1 Keen, 190 ; Story Eq. PL 413. English Reports Citation: 49 E.R. 502 ROLLS COURT Bampton and Birchall S. C. 5 Beav. 330; 6 Jur. 815; 1 Ph. 568; 41 E. R. 74......
-
Kay v Marshall and Others
...English Reports Citation: 48 E.R. 1048 ROLLS COURT Kay and Marshall S. C. 1 Keen, 190; 2 Webs. Pat. Cas. 36; 5 Bing. N. C. 492; 7 Scott, 548; 8 L. J. L. P. 261; West, 682; 5 Jur. 1028; 8 Cl. & Fin. 245; 8 E. R. 96. Distinguished in Pirrie v. York Street Flax Spinning Company, 1894, 11 R. P.......